Supreme Court Digs Into Redistricting

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By Kimberly Robinson

Nov. 23 — The U.S. Supreme Court's docket is crowded with voter redistricting disputes this term.

The high court already heard a procedural redistricting dispute, Shapiro v. McManus, U.S., No. 14-990, argued, 11/4/15 (84 U.S.L.W. 615, 11/10/15), and the justices recently agreed to take a look at a racial gerrymandering challenge to Virginia's latest voter map in Wittman v. Personhuballah, U.S., No. 14-1504, review granted, 11/13/15 (84 U.S.L.W. 663, 11/17/15).

But on Dec. 8, the one-person, one-vote principle will take center stage at the high court in two separate redistricting cases: Evenwel v. Abbott, U.S., No. 14-940, oral argument scheduled, 12/8/15, and Harris v. Ariz. Indep. Redistricting Comm'n, U.S., No. 14-232, oral argument scheduled, 12/8/15.

Where the justices ultimately land in these cases could have a national impact.

Clear Answer?

The dispute in Evenwel—possibly the most consequential of the two one-person, one-vote challenges—centers on whether the one-person, one-vote principle announced in Reynolds v. Sims, 377 U.S. 533 (1964), protects all persons, or just eligible voters.

In Reynolds, the court held that the equal protection clause requires that states draw legislative districts with substantially equal population. “Simply stated, an individual's right to vote for [] legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State,” the court said.

But the Reynolds court didn't say which population had to be equalized—the total population or only the population of eligible voters.

The two Texas voters, Sue Evenwel and Edward Pfenninger, who brought the one-person, one-vote challenge to the state's most recent voter maps said in their opening Supreme Court brief that the “answer is clear—the one-person, one-vote rule protects eligible voters.”

Because the state uses total population to draw its district lines, the challengers said they live in districts that are “among the most overpopulated with eligible voters.” For example, the vote of an eligible voter in District 27, a district with fewer eligible voters, “is 1.56 times more powerful than the vote of an eligible voter in District 1 (where Ms. Evenwel resides).”

But the state responded that which population method to use—total or eligible voter—is a question best left to the states.

A state's “decision to include or exclude non-voters in its apportionment base ‘involves choices about the nature of representation with which [the Supreme Court has] been shown no constitutionally founded reason to interfere,' ” the state said in its Supreme Court brief, quoting Burns v. Richardson, 384 U.S. 73 (1966).

Federalism v. Right to Vote

Evenwel, therefore, pits federalism against the right to vote—a right Judicial Watch president Tom Fitton told Bloomberg BNA protects all the other rights we have.

Judicial Watch—“a conservative, non-partisan educational foundation,” that “promotes transparency, accountability and integrity in government, politics and the law,” according to its website—filed an amicus curiae brief in support of the challengers of Texas's voter map in Evenwel.

Fitton said that in states that use total voting population to redraw district lines—rather than eligible voter population—some voters get outsized voting power.

In particular, he pointed to noncitizens, who are counted in the total population metric, as distorting the right to vote. Fitton said it's a big distortion too, with noncitizens accounting for about 13 percent of the population.

In areas with more noncitizens, eligible voters have greater influence than eligible voters in areas without many noncitizens, Fitton said. That's because they get to elect representatives that have fewer eligible voters to be accountable to, he said.

But Lisa Soronen, of the State and Local Legal Center, told Bloomberg BNA that which population metric to use is a choice the courts have traditionally left to the states.

The State and Local Legal Center is a Supreme Court advocacy group for state and local governments.

The status quo is that state legislatures get to “decide what voting metric they want to use when redistricting,” Soronen said in a Nov. 18 e-mail.

For decades, “countless state and local governments” have used total population when redistricting, Texas said in its brief.

The Supreme Court will decide if the states continue to have this flexibility, or whether they must “achieve district equality by equalizing voters rather than people,” University of California, Irvine School of Law's Richard L. Hasen told Bloomberg BNA in a Nov. 18 e-mail.

If the court decides that states have to focus on one metric over the other, it will be usurping power currently reserved to the states, Soronen said.

Who Wins?

But Fitton said such a decision wouldn't be as disruptive as people might think.

He noted that as a result of Reynolds v. Sims, 44 states had to redo their voting maps. “We got through that,” Fitton said.

Still, Fitton conceded that the outcome in Evenwel could affect state and local elections nationwide.

“[R]ural areas and Republicans stand to gain the most” from a decision requiring states to focus on eligible voters, Soronen said. That's “because a larger percent of undocumented people live in urban, Democrat areas,” she said.

If the Supreme Court decides that states must consider only eligible voters, more eligible voters will be shifted out of rural, Republican districts, and into urban, Democrat ones.

Fitton agreed that Democrats would lose seats initially.

But he said districts should represent where Americans stand politically. Where counting noncitizens distorts the real political makeup, focusing on only eligible votes would restore it, Fitton said.

Laying Down the Rules

It's not clear if the second redistricting case to be considered by the justices on Dec. 8—Harris—will have the same national consequences, Fitton said.

Although also focusing on the one-person, one-vote principle, Harris deals with it more subtly, he said.

At issue is whether “taking partisanship into account may be too much when it comes to deviating from perfect population equality in drawing legislative districts,” Hasen, who created the Election Law Blog, said.

In particular, the challengers in Harris say Arizona's voter maps should be redrawn in part because they under-populated certain districts in order to obtain a political advantage for Democrats.

Fitton said the fact that the court scheduled both Harris and Evenwel for argument on the same day signals that there is some tie between the two cases.

At a very general level, “they both involve the question of what rules the Supreme Court puts in place to assure fairness in the drawing of electoral districts,” Hasen said.

Special Procedure

But they also are connected in that both “cases came up to the Supreme Court under a special procedure,” he said

“These cases were heard (pursuant to federal statute) by an initial three-judge court, with direct appeal to the Supreme Court,” Hasen explained.

“Unlike a denial of a petition for writ of certiorari (the usual way cases get to the Supreme Court), which has no precedential value, a Supreme Court decision to dismiss or affirm a case on appeal from a three-judge court does have precedential value,” he said.

Because of that, Chief Justice John G. Roberts Jr. “has repeatedly said that the Court feels a greater obligation to hear full argument in these cases,” Hasen said.

This ties Evenwel and Harris back to Shapiro v. McManus.

“That case concerns the question whether a single district court judge has discretion to deny the convening of a three-judge court when the judge believes an issue is frivolous and does not deserve a three-judge court,” Hasen said.

He added that there's “a lot at stake, given how the three-judge procedure greatly increases the odds of a full hearing before the Supreme Court.”

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com